The General Assembly also made it easier to modify a person's sentence.
Effective July 1, 2014, the judge may reduce or suspend a person's
sentence and impose any sentence the court was authorized to impose at
the time of sentencing. The prosecutor's consent is no longer required.
A hearing on the sentence modification petition is likewise no longer
required, but if the judge sets a hearing on the petition, he or she must
give notice to the prosecutor and the prosecutor must give notice to the
victim. The terms of the convicted person's plea agreement control
any subsequent sentence modification.

In other words, whatever the judge had the discretion to do at sentencing
limits the judge's later modification authority. Even if the plea
agreement has a sentencing cap or range, the judge still has discretion
in determining what sentence to impose and can modify it later. Only "closed"
plea agreements calling for a specific term of executed years (with no
discretion as to placement) will be ineligible for subsequent sentence
modification. The 2014 amendment limits the filing of petitions to modify
a sentence to one per year and no more than two during the person's sentence.

Finally, a person may not waive the right to seek sentence modification
in his or her plea agreement. The amended statute says that any purported
waiver "is invalid and unenforceable as against public policy."

The Legislature also expanded Indiana's pretrial diversion statute
to allow prosecutors to withhold prosecution against an accused person
charged with a misdemeanor, or a Level 5 or 6 felony. The other statutory
exclusions and requirements remain unchanged, and prosecutors have discretion
regarding which offenses they will offer diversion. There is no protected
liberty interest in remaining in a pretrial diversion program.

A person is not entitled to a due process hearing prior to termination
from the program. However, if the person "admits" to the charged
offense and enters into a plea agreement calling for a withheld judgment
or deferred sentence, he is entitled to the same due process rights afforded
to defendants in other contexts-- for example probation revocation proceedings
where there is a right to hearing, confrontation, and cross-examination
of witnesses.

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Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.